The Supreme Court and Canada’s Rump Parliament (part two)

Whether one considers Canada a constitutional democracy or a parliamentary democracy, Canadian legislatures (federally, Parliament) have final authority in the areas assigned them under Canada’s Constitution. They also have the open door of the Charter’s notwithstanding clause to authorize override of rights beyond objection by the courts, knowing such a legislative decision is likely to be the topic of public debate in their next election, if not before.

In the current health crisis, the federal Government has not declared a national emergency. Under the federal Emergencies Act, declaration of a national emergency would require: a report to Parliament on prior consultation with provincial leaders; approval of the Government’s declaration by Parliament within seven sitting days; supervision by a Parliamentary committee; review and re-approval by Parliament every ninety days (otherwise the emergency powers lapse); and, at the conclusion of the emergency, a parliamentary inquiry as well as an independent inquiry into the decisions made by Government during the emergency.

In the absence of a federal declaration, each province has declared a provincial health emergency. Health care is constitutionally provincial jurisdiction.

On 13 March, Parliament decided to extend its Spring Break in light of developing concerns about Covid-19. It was anticipated that not returning for the two week sitting following Spring Break and prior to the Easter Break would address concerns about recommended health isolation measures and Members of Parliament (MPs) would return on 20 April.

Unknowns about Covid-19, and emergency measures implemented by provincial and territorial governments, most based on recommendations of the federal government, fashioned a different shape to the crisis than anticipated by MPs on 13 March.

The Prime Minister took to hosting a daily press conference outside his residence coincident with Parliament rising. Each day he announced emergency expenditures. But, his Government lacked the constitutional authority to authorize spending without approval by Parliament.

However, the Government does hold the constitutional power to call for Parliament to sit. It used that power to call a single-agenda-item single-day sitting to pass the emergency expenditures previously announced. In preparation, all parties agreed to attend in limited numbers to satisfy: constitutional quorum requirements; existing seat allocation in the House of Commons; and, physical distancing recommendations. The Government’s legislation unexpectedly included proposed emergency powers to tax, spend and govern unopposed until December 2021. Using the constitutional authority of Parliament, opposition parties forced the Government to prune the new and extensive powers from the legislation before passing it.

Within days, additional front-step press conference commitments by the Prime Minister made it clear Parliament would have to meet again to consider additional announced-before-authorized expenditures. The Government called for Parliament to return on the Saturday of Easter Weekend. The inconveniently timed one day sitting resulted in increasing the emergency financial package to nearly $180 billion. The second bill, again needed to be pruned by Parliament before it could pass.

By the time the House returned as scheduled on 20 April, the Liberal Government had cut a deal with the Bloc Quebecois (BQ) and New Democratic Party (NDP) to suspend Parliament. MPs would instead meet in a Committee of the Whole dedicated to Covid-19, in person on Wednesdays and by use of technology on Tuesdays and Thursdays.

The Official Opposition was painted as being obstructive because Conservatives insisted the House of Commons meet in person three days a week, observing precautions in place for fewer MPs to attend (including ongoing communications with caucus members not present in the House), until the necessary technology was in place for the House to meet, not as Committee of the Whole but as the elected House of Commons.

The Committee of the Whole motion was passed, with only Conservatives voting against.

In debate on the motion to adjourn the House for Committee of the Whole, it was presented that some provinces required quarantine for anyone returning from out of province, even within Canada. This, it was argued, would make it unfair for MPs to be asked to travel from and to those provinces if required to physically attend Parliament. It was pointed out that most provinces and territories also had orders in place restricting ‘unnecessary’ travel.

The Leader of the Opposition, Andrew Scheer stated:

Millions of Canadians are going to work every single day to help their neighbours get through this pandemic. Parliamentarians should be doing the same thing… surely we can do our duty to uphold the bedrock of our democracy.

That is the issue: democracy. Canadians have the right to be represented… Their concerns must be heard and their questions must be answered.

These remarks were countered by Government MPs expressing concern for the health of the approximately fifty staff required in order for the up to three dozen MPs to meet in the House of Commons chamber.

BQ leader Yves-Francois Blanchet stated, “I sincerely doubt that Canadians and Quebeckers are interested in seeing a bunch of parliamentarians talking to other parliamentarians about parliamentary matters to figure out how to fix them as parliamentarians. Even I am not very interested in that.”

Perhaps, he was right. Most Canadians certainly did not fully comprehend what was about to happen. The leader of the NDP, Jagmeet Singh, did not. His comments in the debate suggest he thought Parliament would be meeting when in fact the motion authorized a House of Commons’ committee.

MP Paul Manly stated the Green Party position:

Front-line workers are living apart from their loved ones during this pandemic. A friend who is a nurse in my community has two young boys. She has not been able to hug her sons or spend time with them in person for weeks. It is a situation that is echoed in thousands of homes across the country.

Front-line workers are making huge sacrifices to protect our communities and to keep essential services operating. That is why it is imperative that the rest of us, including those of us in the House, respect their sacrifices by continuing to follow the directives of health authorities.

There you have it. MPs receive an allowance for accommodations in Ottawa. Most have apartments, condos or houses in the nation’s capital. Willing to recognize the sacrifice being made by front-line workers, a majority were not prepared to make similar sacrifice for the sake of accountable governance. MPs were also unprepared to ask a complement of staff, a smaller number than required at most grocery stores that encounter thousands of shoppers each day, to take precautions and come to work.

The Prime Minister did not get the almost unlimited powers he had sought on 20 March. But his minority government did secure $180 billion dollars of borrowed money to back up the one-a-day new spending announcements made at the front-steps-of-Rideau-Cottage press conferences he has staged for nearly two months.

Until at least 25 May Parliament is toothless. In its place Canadians have a committee that can make noise, but without the bite of Parliament. The Speaker sits as committee chair, but cannot preside as Speaker because it is not the House of Commons. The Senate does not sit unless the House does.

Save for the House sitting on 20 April, the Prime Minister has controlled when the House and Senate will sit, and what will be on their respective agendas, since 13 March.

On 22 April, the Prime Minister announced $9 billion more in spending for students, then called the House to sit for a couple of hours, again with a single-item agenda, after the in-person Committee of the Whole on 29 April to pass the necessary legislation. The House, after all, is still required to sit in person. Which party would vote against cash for over 2 million voters under age 25? Still, opposition parties for the third time were compelled to amend the legislation proposed by the Government before it could pass. Mr. Trudeau called the Senate’s skeleton crew to put two hours into the same bill so the money would flow.

That brings us to consideration of the first Rump Parliament.

On 6 December 1648 control of the English Parliament, the Parliament which had been conceived four centuries earlier in Magna Carta, was appropriated by leaders from the wealthy gentry – those who could live entirely off of inherited money or the income from largely inherited land or business. They were able to bar from the House of Commons MPs unwilling to try the king for treason. (By doing so, they also increased their own authority to tax and to spend.) They did away with a disagreeable House of Lords (the Canadian equivalent to shuttering the Senate) in order to pass legislation authorizing the King’s trial. Charles I was executed on 30 January 1649. Having neutered Parliament, so that it would only do their will, the Rump Parliament then settled in to hold on to power for as long as possible.

As mentioned yesterday, a long-time lawyer friend, and former MP, Stephen Woodworth was the first person (but not the last) I heard refer to Canada’s current situation as a Rump Parliament, a parliament neutered by the constraints of the agreement to function as Committee of the Whole. Except when summonsed by the gentry to approve expenditures already announced, Canada’s Parliament is currently closed.

The Parliamentary Budget Officer announced that Government decisions announced since Parliament rose on 13 March result in a projected deficit of more than $250 billion for the current fiscal year. There is no functioning Parliament to authoritatively hold the Government to account for that unprecedented volume and speed of expenditure and increased debt. The Government has not presented a budget to Parliament for the current fiscal year, defeat on which would, by constitutional convention, also defeat the Government.

By not declaring a federal emergency the Prime Minister has positioned himself to spend without Parliamentary oversight. He has also avoided the mandatory post-emergency inquiries integrated into the Emergencies Act.

The supremacy of Canada’s Parliament recognized in the constitution, as affirmed by the Supreme Court of Canada on 9 April (see part one), is absent. Almost all of Parliament’s constitutional powers have been transferred into the hands of the Government of the day, a minority government that would otherwise be held to high account in House and Senate on a daily basis.

An unchallenged Prime Minister commits daily to ever new expenditures, domestic and international, seemingly based on concerns identified in polling or in media stories from a few days before the announcement – or, some say, internationally, in pursuit of a U.N. Security Council seat.

Last week, an order-in-council (a cabinet decision made into law) was issued on a matter that would normally have been debated in both the House of Commons and the Senate.

Simultaneous with the Rump Parliament, Canada’s Premiers bear the responsibility of making the difficult, even unpopular, decisions about life, death, and re-opening the economy. The federal government has positioned itself to act as only advisor, an influential advisor, to those provincial decisions, in similar fashion to the World Health Organization advising national governments on recommended action.

Some consider it impressive political manoeuvering by a minority government. Not so another lawyer and former MP, former NDP leader Thomas Mulcair, who has written, “Canadians deserve more than a show, they deserve accountability and respect for the institutions that have made Canada such a great country.”

Monday 25 May will be an important sitting day for Canada’s House of Commons. Either Parliament will return by decision of Canada’s elected Members or a short Rump could become a long Rump. Will the Government push for the status quo until after the previously scheduled summer break, seeking to extend its newfound power until late September? Could it possibly make the Rump last until Mr. Trudeau’s previously sought December 2021? After all, the Prime Minister does remind us almost daily that it will be eighteen to twenty-four months before this crisis resolves.

Rumping a Parliament (if I may use the noun as a verb) serves the purpose of holding onto political power; avoiding political and constitutional responsibility for as long as possible. It does not sincerely serve the public governance interests of democracy. Instead, it makes resistance to Prime Ministerial edict futile.

“First of all, then, I urge that supplications, prayers, intercessions, and thanksgivings be made for all people, for kings and all who are in high positions, that we may lead a peaceful and quiet life, godly and dignified in every way.” – 1 Timothy 2:1-2 (ESV)